CHHEDI LAL Vs. CHHOTEY LAL

JUDGEMENT

(1.) These appeals have been referred to the Full Bench for decision by one of us, as they raise questions upon which there is conflict of view between the decisions of the Allahabad High Court as it existed before the amalgamation and the decisions of the late Chief Court of Avadh. Before addressing our-selves to these questions, it will be convenient) to give facts of each case separately.

(2.) One Tika Ram was the owner of Khata No. 54 corresponding to 17 (new), which included plot No. 1607 in the agricultural area of Hardoi. Tika Ram survived by his four sons, Jutta who died issueless, Nimman Lal, Jai Lal and Chunni Lal. Chunni Lal died leaving a son Gur Sahai, who left a widow Suraj Kuar, defendant 1 in the case Nimman Lal and Jai Lal transferred their entire share in the property of their father to Chhedi Lal and Sheo Narain, On 5-6-1929, Chunni Lal sold a specific share to Chhedi Lal and Sheo Narain. This share included plot No. 1607. Suraj Kuar and one Chhotey Lal started raising constructions upon this plot whereupon Chhedi Lal and Sheo Narain tried to stop them on 6-7-1941, but they paid no heed and went on with the constructions. Chhedi Lal and Sheo Narain thereupon filed a suit two days later on 8th July for possession of the plot by demolition of the constructions raised by the defendants on the ground that they were the sole owners of the entire property owned by Tika Ram, which included the plot in suit and that the defendants had no right. The defendants filed separate written statements denying the plaintiffs' claim, Suraj Kumar pleading that the plaintiffs were not the sole owners and that she was in possession of a portion of the plot and Chhotey Lal asserting that Suraj Kuar was the sole owner and that the plaintiffs had no right at all. The trial Court decreed the suit holding that the defendants had no right to build but this decision was set aside on appeal and the suit was remanded for a trial de novo. Upon retrial, the trial Court held that the plaintiffs had not purchased the entire share of Chunni Lal in the plot in suit and that Suraj Kuar had a subsisting interest in the khata and was entitled to joint possession of the plot in question. The plaintiffs' suit was, therefore, dismissed. The lower appellate Court upheld the dismissal. The plaintiffs thereupon filed Second Civ. App. No. 282 of 1943.

(3.) The suit, out of which Second Civ. App. No. 145 of 1944 arises was filed by Sheo Mangal Singh on 27-3-1943, for possession by demolition of certain Constructions made by the defendants and for a permanent injunction restraining them from building in future. The ground of the claim was that one Hardeo Bakhsh Singh was a co-sharer with the; defendants in the village of Bakhtawarpurwa which Was included in the town of Hardoi. Hardeo Bakhsh Singh made a gift on 23-8-1949, in favour of Sheo Mangal Singh, his sister's son of his entire interest in the village. The constructions complained of by the plaintiff were started on 13-2-1940 in plot No. 2642/7 of Bakhtawarpurwa. The plaintiff protested on 2-2-1942, but the protest was unheeded and the defendants continued the constructions. The ground of the claim was that the plot was the joint property of the properties (sic) and the defendants had no right to build without the permission of co-sharers. The plaintiff had obtained a temporary injunction ex parte on the date of the suit but when the application for injunction came up for hearing on 17-4-1943, the defendants made an application Stating that they had built on the old site after dismantiling the old building, that it was complete except the re-roofing which remained to be done and that object of the plaintiff was that the building should fall down and the mud-bricks which they had prepared be spoilt in the rains. They added that if the plaintiff proved any right, the defendants will remove all the materials with which they would have constructed the building. The trial Court ordered that in view of this reply counsel for the plaintiff did not press the application for injunction.